united states court of appeals for the ninth circuit · 2021. 8. 4. · emergency room medical...

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

LINDA SISTO, a widow; TASHINA

SISTO, an unmarried woman;TYRELL SISTO, an unmarried man;JEREMY SISTO, an unmarried man;KASHINA SISTO, an unmarriedwoman; LANNETTE SISTO, anunmarried woman; PURCELL SISTO,an unmarried man,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,Defendant-Appellee.

No. 20-16435

D.C. No.2:20-cv-00202-

ESW

OPINION

Appeal from the United States District Courtfor the District of Arizona

Eileen S. Willett, Magistrate Judge, Presiding

Argued and Submitted June 8, 2021Seattle, Washington

Filed August 4, 2021

Before: William A. Fletcher, Paul J. Watford, andDaniel P. Collins, Circuit Judges.

SISTO V. UNITED STATES2

Opinion by Judge W. Fletcher;Concurrence by Judge Watford

SUMMARY*

Federal Tort Claim Act/Indian Self-Determination andEducation Assistance Act

The panel affirmed the district court’s dismissal of anaction brought under the Federal Tort Claims Act allegingnegligence by an emergency room physician who treatedTyrone Sisto at the San Carlos Apache HealthcareCorporation hospital and failed to diagnose Rocky MountainSpotted Fever, which led to Sisto’s death.

Plaintiffs alleged that Dr. Gross was an employee of theUnited States under the Federal Tort Claims Act (“FTCA”)and the Indian Self-Determination and Education AssistanceAct (“ISDEAA”), 25 U.S.C. § 5301 et seq. At the time oftreatment, Dr. Gross was working at the SCAHC hospitalpursuant to a contract between SCAHC and Tribal EM, PLLC(“T-EM”) under which T-EM provided emergency roommedical services at the SCAHC hospital. The district courtfound that Dr. Gross was an employee of an independentcontractor, rather than a federal employee, and thus theUnited States had not waived sovereign immunity as toPlaintiffs’ claim. The district court dismissed the suit for lackof subject matter jurisdiction.

* This summary constitutes no part of the opinion of the court. It hasbeen prepared by court staff for the convenience of the reader.

SISTO V. UNITED STATES 3

In affirming the district court, the panel noted that thecontract between SCAHC and T-EM explicitly provided thatthe contract did not establish an employer/employeerelationship between SCAHC and any T-EM Provider. Instead, the contract established an independent contractorrelationship between SCAHC and T-EM, and anemployer/employee relationship between T-EM and T-EMProviders. The contract listed Dr. Gross by name as a T-EMProvider, and the sample Letter of Acknowledgementattached to the contract expressly stated that T-EM Providershave no employment relationship with SCAHC. The paneltherefore concluded that Dr. Gross was an employee of T-EMrather than SCAHC, and that the FTCA and § 5321(d) did notauthorize a suit against the United States based on his allegednegligence.

Plaintiffs argued that Dr. Gross was an “individual whoprovides health care services pursuant to a personal servicescontract with a tribal organization” within the meaning of theISDEAA § 5321(d) and that he was therefore “deemed” anemployee of the Public Health Service under that provision. The panel saw nothing in the history leading to § 5321(d)’saddition to the ISDEAA, in the text of § 5321(d), or in any ofthe regulations, that Congress intended to expand liabilityunder the FTCA in the manner for which Plaintiffs contend.

Plaintiffs argued that because SCAHC granted Dr. Grosshospital privileges to provide emergency room services atSCAHC, he was deemed a federal employee for purposes ofthe FTCA under 25 U.S.C. § 1680c(e)(1) and 25 C.F.R.§ 900.199. The panel disagreed. Because hospital privilegeswere not issued to Dr. Gross on the condition that heprovide services covered by the FTCA, neither 25 U.S.C.


§ 1680c(e)(1) nor 25 C.F.R. § 900.199 conferred FTCAcoverage.

Finally, the panel concluded that SCAHC did not controlDr. Gross’s actions in administering care to a degree or in amanner that rendered him an employee of the governmentwhen he treated Sisto.

Concurring, Judge Watford agreed with reluctance thatdismissal was required. He wrote that the relevant regulation,25 C.F.R. § 900.199, was confusingly written so that itappeared that the FTCA governed any claims the plaintiffsmight assert against the doctor, but the regulation did notaccurately reflect the requirements of the statutory provisionit implemented. He urged that the regulation that misled theplaintiffs’ lawyers into suing the United States for thedoctor’s negligence be amended so that future plaintiffs arenot similarly led astray.

COUNSEL

David L. Abney (argued), Ahwatukee Legal Office P.C.,Phoenix, Arizona, for Plaintiffs-Appellants.

Brock J. Heathcotte (argued), Assistant United StatesAttorney; Krissa M. Lanham, Appellate Division Chief;Michael Bailey, United States Attorney; United StatesAttorney’s Office, Phoenix, Arizona; for Defendant-Appellee.


OPINION

W. FLETCHER, Circuit Judge:

Tyrone Sisto, a member of the San Carlos Apache Tribe,died after Dr. Rickey Gross, an emergency room physician atthe San Carlos Apache Healthcare Corporation (“SCAHC”)hospital, failed to diagnose Rocky Mountain Spotted Fever. Sisto’s mother and his children (“Plaintiffs”) filed suit againstthe United States under the Federal Tort Claims Act(“FTCA”). They claimed that Dr. Gross was an “employeeof the United States” under the FTCA and the Indian Self-Determination and Education Assistance Act (“ISDEAA”),25 U.S.C. § 5301 et seq., and that he negligently failed todiagnose the disease that led to Sisto’s death.

The district court found that Dr. Gross was an employeeof an independent contractor, rather than a federal employee,and thus the United States had not waived sovereignimmunity as to Plaintiffs’ claim. It dismissed the suit for lackof subject matter jurisdiction. Plaintiffs timely appealed. Wehave jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Background

SCAHC entered into a “self-determination contract”under the ISDEAA with the Indian Health Service (“IHS”),a federal agency within the Department of Health and HumanServices, to provide health care to tribal members. In theterminology of the ISDEAA, SCAHC is an “Indiancontractor.” See 25 U.S.C. § 5321(d). Employees of Indiancontractors are deemed federal employees for purposes of theFTCA. Id.


On August 4, 2017, Sisto went to the SCAHC hospitalcomplaining of a headache, body aches, and a poor appetite. His symptoms had begun three days earlier. Dr. Gross wasworking in the emergency department of the hospital that day. After running several lab tests, Dr. Gross concluded Sisto wassuffering from a viral infection. He ordered intravenousfluids as well as pain and nausea medication beforedischarging Sisto. Plaintiffs allege that Dr. Gross did not testSisto for Rocky Mountain Spotted Fever or prescribe anantibiotic that would have treated the disease.

On August 8, 2017, Sisto was found dead in his homewith a rash covering his body. There were ticks “all over theroom” and one on his body. A post-mortem analysis of bloodconfirmed that Sisto died from Rocky Mountain SpottedFever, a potentially fatal tick-borne disease that responds wellto early antibiotic treatment.

Sisto’s mother and his children brought suit against theUnited States under the FTCA, alleging negligence byDr. Gross in failing to diagnose and treat Sisto appropriatelyat the SCAHC hospital. The government moved to dismissthe claim for lack of subject matter jurisdiction under FederalRule of Civil Procedure 12(b)(1). It argued that Dr. Grosswas an employee of an independent contractor rather than ofSCAHC, and that the FTCA does not waive the UnitedStates’ sovereign immunity for claims against employees ofindependent contractors.

At the time of treatment, Dr. Gross was working at theSCAHC hospital pursuant to a contract between SCAHC andTribal EM, PLLC (“T-EM”) under which T-EM providedemergency room medical services at the SCAHC hospital. The contract between SCAHC and T-EM provided:


T-EM is and shall at all times be anindependent contractor with respect toSCAHC in the performance of its obligationsunder this Agreement. Nothing in thisAgreement shall be construed to create anemployer/employee . . . relationship betweenSCAHC and T-EM [or] any T-EM Provider. . . .

¶ 4.1. T-EM agreed to be

solely responsible for paying all expenses,including compensation, health and disabilityinsurance, workers’s compensation insurance,life insurance, professional liability insurance,retirement plan contributions, employeebenefits, income taxes, FICA, FUTA, SDI andall other payroll, employment or other taxesand withholdings, with respect to T-EMProviders . . . .

Id. T-EM agreed to indemnify SCAHC for “negligent acts oromissions” of T-EM employees. ¶ 4.4(b).

The contract further provided that doctors “employed orotherwise engaged by or under contract with T-EM . . . toprovide the Services . . . under this Agreement” are “T-EMProviders.” Recitals, ¶ D. The contract listed Dr. Gross as a“T-EM Provider.” Exhibit 2.5(a). A sample “Letter ofAcknowledgement” was attached to the contract, to be signedby “T-EM Provider[s].” The letter provided, “I expressly . . .[a]cknowledge that I have no employment, independentcontractor or other contractual relationship with SCAHC, thatmy right to practice at SCAHC as a T-EM Provider is derived


solely through my employment or contractual relationshipwith T-EM.” Exhibit 2.5.

The district court granted the government’s motion todismiss, finding that Dr. Gross was an employee of T-EMrather than SCAHC. Plaintiffs timely appealed.

II. Standard of Review

“We review de novo a dismissal for lack of subject matterjurisdiction under the FTCA.” Edison v. United States,822 F.3d 510, 517 (9th Cir. 2016).

III. Discussion

A. The FTCA and the ISDEAA

The FTCA waives the sovereign immunity of the UnitedStates, allowing the United States to be sued for damages forinjuries “caused by the negligent or wrongful act or omissionof any employee of the Government while acting within thescope of his office or employment.” 28 U.S.C. § 1346(b)(1). “Employee of the government” is defined to include “officersor employees of any federal agency.” Id. § 2671. “[T]heterm ‘Federal agency’ . . . does not include any contractorwith the United States.” Id. “Courts have construed theindependent contractor exception to protect the United Statesfrom vicarious liability for the negligent acts of itsindependent contractors.” Edison, 822 F.3d at 518 (citationomitted).

The ISDEAA was enacted in 1975 to increase tribalparticipation in the management of programs and activities onreservations by authorizing tribes and tribal organizations to


enter into contracts, called “self-determination contracts,”with either the Secretary of Health and Human Services or theSecretary of the Interior. 25 U.S.C. § 5304(i), (j). Undersuch contracts, the “Indian contractor” agrees to undertakeresponsibility “for the planning, conduct, and administrationof programs or services that are otherwise provided to IndianTribes and members of Indian Tribes pursuant to Federallaw.” Id. § 5304(j). In the case before us, SCAHC enteredinto such a contract with the Indian Health Service, a divisionof the Department of Health and Human Services.

Tribes were faced with substantial costs in carrying outtheir self-determination contracts. Among them were highcosts for liability insurance, particularly medical malpracticeinsurance. Coverage Issues Under the Indian Self-Determination Act, 22 U.S. Op. O.L.C. 65, 68 (1998). Thesecosts were a significant disincentive to tribes contemplatingself-determination contracts for medical services. When thegovernment provided health services directly to the tribes,malpractice claims were covered by the FTCA because theservices were provided by federal employees. In 1987, inorder to encourage tribes to enter into self-determinationcontracts for medical services, Congress amended theISDEAA to provide that personal injury claims arising out ofmedical malpractice claims were covered by the FTCA. Thecurrent version of the 1987 amendment is codified in§ 5321(d).

B. Section 5321(d)

Section 5321(d) is not an easy read. It is a single sentenceof 336 words, punctuated by a colon after the first 253 words. Paring it down to its relevant text, § 5321(d) provides:


For purposes of section 233 of Title 42, withrespect to claims by any person . . . forpersonal injury, including death, resultingfrom the performance . . . of medical . . .functions . . . , an Indian tribe, a tribalorganization or Indian contractor carryingout a contract . . . under section[] 5321 . . . ofthis title is deemed to be part of the PublicHealth Service in the Department of Healthand Human Services while carrying out anysuch contract . . . and its employees (includingthose acting on behalf of the organization orcontractor as provided in section 2671 of Title28, and including an individual who provideshealth care services pursuant to a personalservices contract with a tribal organizationfor the provision of services in any facilityowned, operated, or constructed under thejurisdiction of the Indian Health Service) aredeemed employees of the Service while actingwithin the scope of their employment incarrying out the contract . . . .

(Emphases added.)

The statutory references in the text just quoted are asfollows: Section 233 of Title 42 authorizes civil actions fordamages against the United States Public Health Service. Section 5321 of Title 25, part of the ISDEAA, authorizes theSecretary of Interior or Secretary of Health and HumanServices to enter into “self-determination contracts” withIndian tribes or tribal entities, under which the tribe or tribalentity undertakes to perform functions that would otherwisebe performed by the federal government; § 5321(d), whose


relevant text is quoted above, provides that certain personsacting under such contracts may be sued under the FTCA. Section 2671 of Title 28 is a section of the FTCA. Quotedabove, it defines the term “Federal agency” for purposes ofthe FTCA, authorizing damage suits in tort against employeesof federal agencies; as noted above, § 2671 specificallyprovides that the term “does not include any contractor withthe United States.”

In the normal operation of the FTCA, federal employeesare covered for acts or omissions occurring in the scope oftheir employment. However, when an independent contractorwith the United States performs a function for thegovernment, that independent contractor (as well as itsemployees) are not covered. 28 U.S.C. § 2671. Section5321(d) changes the normal operation of the FTCA,providing that Indian contractors and their employees aredeemed to be employees of the United States Public HealthService, thus making the FTCA applicable to suits againstthem arising out of the medical services provided.

C. Application to this Case

In the case before us, SCAHC has entered into a self-determination contract with the Indian Health Service toprovide health services to the San Carlos Apache Tribe. It isclear that employees of SCAHC are covered by the FTCA. The question is whether an employee of an entity that hascontracted with SCAHC to provide health services to SCAHCas an independent contractor is also covered by the FTCA. As we read § 5321(d), the answer is “no.”

The parties agree that, under 25 U.S.C. § 5321(d) of theISDEAA, SCAHC is part of the United States Public Health


Service for purposes of the FTCA and that, subject toexceptions not relevant here, injuries caused by thenegligence of SCAHC employees while acting within thescope of their employment are covered by the FTCA. Thedistrict court held that Dr. Gross was not an employee ofSCAHC, but rather an employee of T-EM, an independentcontractor. The court concluded that the FTCA and§ 5321(d) do not waive the United States’ sovereignimmunity with respect to claims based on the negligence ofemployees of independent contractors providing health carepursuant to a self-determination contract under the ISDEAA.

We agree with the district court. The contract betweenSCAHC and T-EM, whose relevant language we quote above,explicitly provides that the contract does not establish anemployer/employee relationship between SCAHC and any“T-EM Provider.” Instead, the contract establishes anindependent contractor relationship between SCAHC and T-EM, and an employer/employee relationship between T-EMand T-EM Providers. The contract lists Dr. Gross by name asa T-EM Provider, and the sample “Letter ofAcknowledgement” attached to the contract “expressly”states that T-EM Providers “have no employment . . .relationship with SCAHC.” We therefore conclude thatDr. Gross was an employee of T-EM rather than SCAHC, andthat the FTCA and § 5321(d) do not authorize a suit againstthe United States based on his alleged negligence.

D. Plaintiffs’ Arguments

Plaintiffs make several arguments against our conclusion. We address them in turn.


1. “Pursuant to a Personal Services Contract”

Plaintiffs argue that Dr. Gross was “an individual whoprovides health care services pursuant to a personal servicescontract with a tribal organization” within the meaning of§ 5321(d) and that he is therefore “deemed” an employee ofthe Public Health Service under that provision. We disagreewith Plaintiffs’ broad reading of § 5321(d).

As we read § 5321(d), in order to be “an individual whoprovides health care services pursuant to a personal servicescontract with a tribal organization,” the individual musthimself or herself have entered into a personal servicescontract with an Indian tribe, tribal organization, or Indiancontractor. It is not enough for the individual to have enteredinto a personal services contract with an entity that hasentered into an agreement as an independent contractor withan Indian tribe, tribal organization, or Indian contractor.

We are reinforced in this reading by regulationspromulgated by the Bureau of Indian Affairs and the IndianHealth Service that seek to explain the scope of FTCAcoverage under § 5321(d). See 25 C.F.R. § 900.180 et seq. While the regulations are not a model of clarity, they supportour conclusion that a “personal services contract” within themeaning of § 5321(d) refers to a contract between an Indiancontractor and an individual providing personal servicespursuant to that contract, and not to a contract between anindependent subcontractor such as T-EM and an individual.

The regulations pretty clearly indicate that a “personalservices contract” to which § 5321(d) refers is a contract


between an Indian contractor and the person providing theservices. Section 900.186 provides:

Is it necessary for a self-determinationcontract to include any clauses aboutFederal Tort Claims Act coverage?

No, it is optional. At the request of Indiantribes and tribal organizations, self-determination contracts shall include thefollowing clause[] to clarify the scope ofFTCA coverage:

. . .

For purposes of Federal Tort Claims Actcoverage, the contractor and its employees(including individuals performingpersonal services contracts with thecontractor to provide health care services)are deemed to be employees of theFederal government while performingwork under this contract.

Id. § 900.186(a) (emphasis added). Under the clarifyinglanguage, “individuals performing personal services contractswith the contractor” are deemed federal employees. As weread this language, individuals cannot “perform[] personalservices contracts with the contractor” if they are not partiesto a contract with the contractor. Thus, individualsperforming work under a contract with a subcontractor, ratherthan with the Indian contractor, are not deemed federalemployees based on the personal services they provide.


Elsewhere, the regulations provide that “[s]ubcontractorsor subgrantees providing services to [an Indian] contractor orgrantee are generally not covered” by the FTCA. 25 C.F.R.§ 900.189. Section 900.189 recognizes an exception for“personal services contracts under [1] § 900.193 (for§ 900.183(b)(1)) or [2] § 900.183(b) (for § 900.190).” Id.(bracketed numbers added). None of these sectionscontradict the language in § 900.186(a) indicating that a“personal services contract” refers to a contract between anIndian contractor and an individual providing personalservices.

First, § 900.193 provides:

Does FTCA coverage extend to individualswho provide health care services under apersonal services contract providingservices in a facility that is owned,operated, or constructed under thejurisdiction of the IHS?

Yes. The coverage extends to individualpersonal service contractors providing healthcare services in such a facility . . . .

(Emphasis added.) Section 900.183(b)(1), in turn, provides:

(b) What claims may not be pursued underFTCA?

(1) Except as provided in § 900.181(a)(1)and § 900.189, claims against contractorsarising out of the performance of


subcontracts with a self-determinationcontractor[.]

Section 900.181(a)(1), referenced in § 900.183(b)(1), doesnot exist, but may refer to § 900.181(1) which includescertain subcontractors in California (not relevant here) in thedefinition of an Indian contractor. Section 900.189, quotedabove, provides that subcontractors are generally not coveredby the FTCA unless they are Indian contractors or operatingpursuant to personal services contracts.

Second, § 900.183(b) specifies four types of claims that“may not be pursued” under the FTCA. The first claim isspecified in subsection (b)(1), quoted in the precedingparagraph. The other claims are (b)(2), for on-the-job injuriescovered by “workmen’s compensation”; (b)(3), for breach ofcontract; and (b)(4), for claims arising out of activitiesoutside of an employee’s scope of employment. Section900.190 does not mention personal services contracts.

We see nothing in the history leading to § 5321(d)’saddition to the ISDEAA, in the text of § 5321(d), or in any ofthe regulations that leads us to believe that Congress intendedto expand liability under the FTCA in the manner for whichPlaintiffs contend. Because Dr. Gross had only a contractwith T-EM, he was not “an individual who provide[d] healthcare services pursuant to a personal services contract with atribal organization.” He was thus not deemed an employee ofthe Public Health Service under § 5321(d).

2. Staff Privileges

Plaintiffs argue that because SCAHC granted Dr. Grosshospital privileges to provide emergency room services at


SCAHC, he is deemed a federal employee for purposes of theFTCA under 25 U.S.C. § 1680c(e)(1) and 25 C.F.R.§ 900.199. We disagree. These provisions extend FTCAcoverage to individuals who are designated as employees forpurposes of the FTCA as part of the privileging process andare issued privileges on the condition that the practitionerprovide services covered by the FTCA. They do notindependently confer FTCA coverage to all health careproviders who have been granted hospital privileges.

Section 1680c(e)(1) provides that hospital privileges infacilities like SCAHC may be extended to non-Indian HealthService practitioners who provide certain services. Itcontinues:

Such non-Service health care practitionersmay, as part of the privileging process, bedesignated as employees of the FederalGovernment for purposes of section 1346(b)and chapter 171 of Title 28 (relating toFederal tort claims) only with respect to actsor omissions which occur in the course ofproviding services to eligible individuals as apart of the conditions under which suchhospital privileges are extended.

25 U.S.C. § 1680c(e)(1).

Under § 1680c(e)(1), non-Service providers such asDr. Gross may be designated as employees for purposes ofthe FTCA for care they provide to eligible individuals. Id. The statute clearly recognizes the possibility, however, thata provider may receive hospital privileges without beingdesignated an employee for purposes of the FTCA, for it


provides that “[s]uch . . . practitioners may, as part of theprivileging process, be designated as employees” to providecare to eligible individuals “as a part of the conditions underwhich such hospital privileges are extended.” Id. (emphasisadded). The statute does not support Plaintiffs’ argument thatproviders issued privileges to care for eligible individuals arenecessarily covered by the FTCA. See Tsosie v. UnitedStates, 452 F.3d 1161, 1167 (10th Cir. 2006) (stating thatsuch an argument “presents a topsy-turvy reading of thestatute”).

Plaintiffs point to no evidence that SCAHC designatedDr. Gross an employee for purposes of the FTCA “as part ofthe privileging process . . . as a part of the conditions underwhich such [] privileges [were] extended.” 25 U.S.C.§ 1680c(e)(1). The contract between SCAHC and T-EMspecified that T-EM would provide the listed medical servicesas an independent contractor; required T-EM to maintain itsown liability insurance to provide coverage for T-EM and T-EM Providers; and required T-EM to indemnify SCAHC fordamage judgments arising out of a negligent act or omissionby a T-EM Provider. It comes as no surprise that SCAHC didnot then also designate T-EM’s employees as employees ofSCAHC for purposes of the FTCA, thereby protecting itselffrom liability, for SCAHC was already protected fromliability by the provisions in its contract with T-EM.

25 C.F.R. § 900.199, upon which Plaintiffs also rely,provides:

Does FTCA coverage extend to health carepractitioners to whom staff privilegeshave been extended in contractor healthcare facilities operated under a


self-determination contract on thecondition that such practitioner providehealth services to IHS beneficiaries coveredby FTCA?

Yes, health care practitioners with staffprivileges in a facility operated by acontractor are covered when they performservices to IHS beneficiaries. Such personnelare not covered when providing services tonon-IHS beneficiaries.

Like § 1680c(e)(1), § 900.199 does not stand for theproposition that the issuance of hospital privileges aloneprovides FTCA coverage. Instead, § 900.199 clarifies thatthose practitioners to whom staff privileges have beenextended “on the condition that [they] provide health servicesto IHS beneficiaries covered by FTCA” are covered onlywhen performing services for IHS beneficiaries.

Plaintiffs point to the answer portion of § 900.199 whenthey contend that it extends FTCA coverage to practitionerslike Dr. Gross who have been issued staff privileges. But theanswer must be read in light of the question, which assumesprivileges were issued “on the condition that [the] practitionerprovide health services to IHS beneficiaries covered byFTCA.” Id. (emphasis added). In light of the question, theanswer clarifies that when privileges are issued on thecondition that the practitioner provides services covered bythe FTCA, such coverage exists only when they provideservices to IHS beneficiaries.

Because hospital privileges were not issued to Dr. Grosson the condition that he provide services covered by the


FTCA, neither 25 U.S.C. § 1680c(e)(1) nor 25 C.F.R.§ 900.199 confers FTCA coverage.

3. Control

In some circumstances, despite language to the contraryin a contract, a court may determine that a worker is anemployee based on the degree of control exercised over theworker. See, e.g., Alexander v. FedEx Ground Package Sys.,Inc., 765 F.3d 981 (9th Cir. 2014). Thus, in Carrillo v.United States, 5 F.3d 1302, 1304 (9th Cir. 1993), where thequestion was whether a doctor working for the Veteran’sAdministration was a federal employee under the FTCA, weexamined the degree of control over the manner in which thedoctor practiced medicine.

Plaintiffs argue that under the terms of the contractbetween SCAHC and T-EM, Dr. Gross “was part of anapparent employer-employee relationship and was, byreasonable inference, subject to the hospital’s relativelycontinuous supervision and control.” But Plaintiffs point tonothing that shows that SCAHC had actual “control overDr. [Gross’s] practice of medicine.” Id. at 1305 (emphasisadded). T-EM, rather than SCAHC, was responsible forsupervising Dr. Gross’s actions in diagnosing and treatingpatients. The contract provided that T-EM’s professionalservices were to include “the evaluation, diagnosis, treatment,supervision, and management of . . . health complaints andcrises . . . with respect to patients presenting to theDepartment.” T-EM, through its Medical Director, was to“[p]rovide medical direction for the day-to-day operations ofthe Department.” The contract further specified that “T-EM. . . shall ensure that T-EM Providers . . . satisfy [designated]performance standards.”


Plaintiffs also argue that Dr. Gross was an employee ofthe government for purposes of the FTCA because he was a“person[] acting on behalf of a federal agency in an officialcapacity.” 28 U.S.C. § 2671. But the Supreme Court appliesthe ordinary “control test” to this provision of § 2671 anddoes not consider a contractor “whose physical performanceis not subject to governmental supervision . . . to be treated as‘acting on behalf of’ a federal agency simply because they areperforming tasks that would otherwise be performed bysalaried employees of the Government.” See Logue v. UnitedStates, 412 U.S. 521, 531–32 (1973).

We therefore conclude that SCAHC did not controlDr. Gross’s actions in administering care to a degree or in amanner that rendered him an employee of the governmentwhen he treated Sisto.

Conclusion

Dr. Gross was not an “employee” of the United Statesunder the FTCA and 25 U.S.C. § 5321(d) when he treatedTyrone Sisto. We therefore affirm the district court’s orderof dismissal. In so doing, we do not reach the merits ofPlaintiffs’ malpractice claims which remain to be resolved inthe appropriate forum.

AFFIRMED.


WATFORD, Circuit Judge, concurring:

Like my colleagues, I vote to affirm the dismissal of theplaintiffs’ suit, but I do so with some reluctance.

If the plaintiffs’ allegations are true, Tyrone Sisto diedtragically and unnecessarily, due to the negligence of a doctorworking at Mr. Sisto’s local tribal hospital. That hospital wasoperated by the San Carlos Apache Healthcare Corporationunder a contract with the Indian Health Service (IHS), an armof the federal government. Mr. Sisto’s mother and childrencould have sued the doctor and his immediate employer,Tribal EM, in state court, but their lawyers thought theyinstead had to sue the United States under the Federal TortClaims Act (FTCA).

One can certainly understand why the plaintiffs’ lawyerscame to that conclusion. A confusingly written regulationissued by the Departments of Interior and Health and HumanServices states that “health care practitioners with staffprivileges in a facility operated by a contractor are covered[by the FTCA] when they perform services to IHSbeneficiaries.” 25 C.F.R. § 900.199. The doctor who treatedMr. Sisto was of course a healthcare practitioner; he had infact been granted staff privileges in a facility operated by anIndian contractor (namely, the San Carlos Apache HealthcareCorporation); and he had in fact been providing services to anIHS beneficiary (namely, Mr. Sisto). Under the terms of theregulation, then, it appeared as though the FTCA governedany claims the plaintiffs might assert against the doctor.

The problem is that the regulation as drafted does notaccurately reflect the requirements of the statutory provisionit implements. Section 1680c of Title 25 provides that


healthcare practitioners, like the doctor who treated Mr. Sisto,“may, as part of the privileging process, be designated asemployees of the Federal Government for purposes of [theFTCA] only with respect to acts or omissions which occur inthe course of providing services to eligible individuals as apart of the conditions under which such hospital privilegesare extended.” 25 U.S.C. § 1680c(e)(1). Not all of theserequirements were met in this case. The doctor who treatedMr. Sisto was never designated as an employee of the federalgovernment as part of the process under which he receivedhospital privileges from the San Carlos Apache HealthcareCorporation. As a result, the United States cannot be sued forthe doctor’s negligence under § 1680c(e)(1) or 25 C.F.R.§ 900.199.

I hope it is not too late for the plaintiffs to pursue theirclaim for medical malpractice against the doctor and hisemployer in state court. One thing is clear, though. Theregulation that misled the plaintiffs’ lawyers into suing theUnited States for the doctor’s negligence should be amendedso that future plaintiffs are not similarly led astray.

united states court of appeals for the ninth circuit · 2021. 8. 4. · emergency room medical...

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